Back in 2014, four California gun dealers sued the the woman who was then acknowledged by presidential proclamation as the nation’s best-looking attorney general over a law that prohibited gun stores from displaying images of guns. On their stores. Or their signs.
Now, according to a press release from the Calguns Foundation, a federal judge has ruled that California’s law is a violation of the gun dealers’ First Amendment rights. Here’s that press release:
SACRAMENTO, CA (September 11, 2018) – Today, federal Judge Troy Nunley ruled that a California law banning licensed gun dealers from displaying handgun-related signs or advertising is unconstitutional and violates their First Amendment rights. The lawsuit, Tracy Rifle and Pistol v. Becerra, is supported by Second Amendment civil rights groups The Calguns Foundation (CGF) and Second Amendment Foundation (SAF) as well as industry association California Association of Federal Firearms Licensees (CAL-FFL).
California Penal Code section 26820, first enacted in 1923, banned gun stores from putting up signs advertising the sale of handguns — but not shotguns or rifles. “But,” the court held today, quoting from the late Supreme Court Justice Antonin Scalia’s landmark Second Amendment 2008 opinion in D.C. v. Heller, “the enshrinement of constitutional rights necessarily takes certain policy choices off the table.”
While the law completely banned handgun-related signs, the “Plaintiffs could display a large neon sign reading ‘GUNS GUNS GUNS’ or a 15-foot depiction of a modern sporting rifle, and this would be permissible,” Judge Nunley explained in his order, highlighting how unreasonable and under-inclusive the law was. And even after four years of litigation, “the Government has not demonstrated that § 26820 would have any effect on handgun suicide or violence.”
The government defended the law on the theory that it “inhibits people with ‘impulsive personality traits’ from purchasing a handgun,” but Judge Nunley held that this cannot justify restricting free speech rights: “[T]he Supreme Court has rejected this highly paternalistic approach to limiting speech, holding that the Government may not ‘achieve its policy objectives through the indirect means of restraining certain speech by certain speakers.’” “California may not accomplish its goals by violating the First Amendment. . . . § 26820 is unconstitutional on its face,” Judge Nunley concluded.
“This is an important victory for our clients and for the First Amendment,” said lead counsel Brad Benbrook. “Judge Nunley decided that the State could not justify its censorship of our clients, and we are delighted with the opinion. As the Court explained today, the government cannot censor commercial speech in a paternalistic effort to keep citizens from making unpopular choices – or choices the government doesn’t approve – if they are told the truth.”
“Under the First Amendment, the government may not restrict speech on the theory that it will supposedly lead a few listeners to do bad things, or even to commit crimes,” explained Eugene Volokh, a UCLA law professor who has written and taught extensively about the First and Second Amendments. “The Supreme Court has held this in the past, and has indeed often struck down restrictions on supposedly dangerous commercial advertising—including advertising for products that some people abuse, such as alcohol. It’s good to see the district court recognizing that the First Amendment has no gun advertising exception.”
“Today, the Court correctly ruled that the First Amendment protects truthful, non-misleading speech about handguns protected under the Second Amendment,” commented CGF Executive Director Brandon Combs. “People have a fundamental, individual right to buy handguns and licensed dealers have a right to tell people where they can lawfully acquire those handguns. Today’s ruling means that the government cannot prevent people, or gun dealers, from talking about constitutionally protected instruments and conduct.”
“This decision will serve as a reminder that firearms dealers have First Amendment rights as well as Second Amendment rights, even in California,” SAF founder and Executive Vice President Alan M. Gottlieb said. “The bottom line is that a state cannot legislate political correctness at the expense of a fundamental, constitutionally-enumerated right. We are delighted to offer financial support of this case.”
The plaintiffs are represented by Benbrook and Stephen Duvernay of the Sacramento-based Benbrook Law Group as well as Professor Volokh. They expect that today’s order in the long-running lawsuit, which was filed in 2014, will be appealed by Attorney General Becerra to the Ninth Circuit Court of Appeals in San Francisco.
A copy of the order can be viewed at https://www.calgunsfoundation.org/tracy-rifle-v-becerra.
The Calguns Foundation (www.calgunsfoundation.org) is a 501(c)3 non-profit organization that serves its members, supporters, and the public through educational, cultural, and judicial efforts to advance Second Amendment and related civil rights.
Second Amendment Foundation (www.saf.org) is the nation’s oldest and largest tax-exempt education, research, publishing and legal action group focusing on the Constitutional right and heritage to privately own and possess firearms. Founded in 1974, The Foundation has grown to more than 650,000 members and supporters and conducts many programs designed to better inform the public about the consequences of gun control.
California Association of Federal Firearm Licensees (www.calffl.org) is California’s advocacy group for Second Amendment and related economic rights. CAL-FFL members include firearm dealers, training professionals, shooting ranges, collectors, gun owners, and others who participate in the firearms ecosystem.
You can read the judge’s ruling here, but the following paragraph is instructive.
The Government aims to stop a group of law-abiding adults with the shared personality trait of “impulsiveness” from making what it sees the bad decision of purchasing a handgun. The Government believes if it can inhibit such persons from making the initial decision to purchase a handgun, it will save them from harming themselves or others with the handgun at some later date, likely years from the initial purchase. However, the Government may not restrict speech that persuades adults, who are neither criminals nor suffer from mental illness, from purchasing a legal and constitutionally-protected product, merely because it distrusts their personality trait and the decisions that personality trait may lead them to make later down the road. Moreover, in the effort to restrict impulsive individuals from purchasing handguns, the Government has restricted speech to all adults, irrespective of whether they have this personality trait.1 Therefore, the Government impermissibly seeks to achieve its goals through the indirect means of restricting certain speech by certain speakers based on the fear that a certain subset of the population with a particular personality trait could potentially make what the Government contends is a bad decision.